Totally Law

Criminal law lectures: Offenses against the person

2009-10-14T15:36:00.000-07:00

General Structures of Offences against the person.
Actions against your person autonomy.
-Minor offences are a mix of common law and statutory. Most serious offences are statutory.
-Offences which do not need a sexual element are largely in Offences Against the Person Act 1861 à codified criminal offences (exclusively against people).

Offences which do not a sexual element are largely in Sexual Offences Act 2003.
-But SOA covers offences which are no so obviously against the person- e.g. offences against morality, such as incest and necrophilia; offences to protect the young, such as grooming; cruelty to animals, such as bestiality.

Assault
1) Assault proper
2) Assault encompassing assault and battery.
Assault Actus Reus = causing Victim to apprehend immediate unlawful personal violence (making the person fear violence i.e. they see your fist coming toward them).
Stephen v Myers, Tuberville v Savage, Ansell v Thomas
Assault Mens Rea = intention or Cunningham recklessness. Spratt, Jones.
à If victim does not realise they are about to be hit, they are not assaulted.

Battery
Personal violence implied in battery.
Battery AR= application of unlawful personal force. Pursell v Horn,
Walkden
Country wedding, aphrodisiac put into the wedding drink
Court said it was not battery.
-No force involved involved/ guests drank the poison.
Battery can be committed by omission. Fagan,
DPP v K
Boy put acid in blow-dryer. Another boy turned it on and had acid sprayed in his face.
Battery can be created by omission.
Battery MR= as assault/ Mens rea intended as the application of unlawful personal force.

Sexual Assaults
Old law of indecent assault- assault or battery in circumstances of indecency.
Indecent means sexual. Aggravated offence – you need to find assault or battery first.
-Required an assault or battery. Fairclough v Whipp.
-Either indecent of itself, or in circumstances of indecency.
-Beal v Kelly
Defendant had invited victim to touch his exposed genitals. When he refused, defendant pulled him forward.
-MR = as assault, plus knowledge of circumstances making it indecent.
Court
Defendant is a shop assistant. Pulled a 12 year old girl on his knee and smacked her buttocks. When asked why, he replied “buttock fettish”

Mens rea à assault and knowledge of circumstances makes it indecency.

Sexual Assault: the 2003 act
Assault by penetration (s.2).
Intentional vaginal or anal penetration with body or any other object;
Penetration is sexual (see s.78);
Victim does not consent, and Defendant does not reasonably believe that Victim was consenting.
-Consent, reasonableness, as per rape
à Lesser offence, assault by touching without penetration (s.3). Defendant used stick to lift victim’s shirt.

s.78 (1) some actions are intrinsically sexual regardless of the actions of the defendant.
s.78 (2) something that is non-sexual can be sexual depending on the circumstances.
-An excuse must be reasonable to serve as a defence.

Assault concerning Actual Bodily Harm
Simple offence, plus causing of actual bodily harm OAPA 1861 s.47.
“Bodily” harm can include psychiatric injury, so long as it went beyond simple distress.
Miller
Defendant had been charged with ABH (any hurt or injury calculated to interfere with health or comfort) afterwards, victim had mental breakdown.
Chan-Fook
-Wedding ring stolen. Defendant suspects victim and interrogated him/ locked him upstairs/ in escaping the victim fell out of a window and injured themselves.
Injuries included distress/ humiliation.
à Bodily injury can include mental injury, but being forced into an emotional state is not an injury.

Wounding and GBH under Section 20
Section 20 is the lesser of the two.
“Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm”. OAPA 1861 s.20
AR =wounding (Mcloughlin), or really serious harm (Saunders).
Does the AR require an assault? (Bairstow)
MR = intention or Cunningham recklessness as to some harm. Savage & Parmenter.

Mcloughlin
Fight on a railway, victim had serious graze.
Bairstow
Stalker/ woman left with emotional traumas. Inflict therefore covered under s.20.

Section 18
Much more serious à up to life imprisonment.
“by any means…wound or cause any grievous bodily harm…with intent to do some grievous bodily harm…” OAPA 1861 s. 18
AR= may be broader than s.20, including poisoning?
MR=intent.
You have to intend to wound to cause GBH. If they die you would have the Mens rea for murder.

Removal of former limits on liability in 20th-21 c. originally narrowed defined as nuns or virgins.
-vaginal only (therefore female victims only);
-age limits on offenders;
-marital rape exemption.
2003 Act extends liability to
penetration of the mouth;
unreasonable belief in consent alters the mens rea.
Some limits remain due to emphasis no penis.

Definition under 2003 Act
Intentionally penetrates
Vagina, anus, or mouth;
of another person,
with Defendant’s penis.
Victim does not consent.
D did not reasonably believe that B consented.

Rape: Actus Reus
Penetration by the penis or continuing penetration after consent is withdrawn.
Kaitamaki
Claimed woman had consented/ he was a burglar, she was a householder.
-Consent is where the victim “agrees by choice, and has the freedom and capacity to make that choice” (s.74).
-Absence of consent is presumed under s.75 if Defendant did relevant act knowingly and particular circumstances existed
e.g. use of violence, imprisonment, Victim was asleep or unconsciousness)
If prosecution prove that these circumstances existed…
à however, defence can rebut these presumptions.

Absence of consent is definitely presumed under s.76 if:
-D intentionally deceived the complainant as to the nature or purpose of the relevant act; or
-D intentionally induced the complainant to consent by impersonating a person known personally to the complainant (pretending to be someone famous will not covered by the provisions).

Mens Rea
D must intend to carry out the sexual act (no change).
Must not believe that victim consented, or if they had such belief, the belief was unreasonable.
Cf knowing or Cunningham reckless as to lack of consent Satnam
-Absence of reasonable consent presumed in particular circumstances (see earlier) if defendant knew about them.

Consent in Offences against the person
Generally, we can refuse to consent to physical contact even against our best interests
Re T
34 year old pregnant woman – Jehovah’s witness told she needed blood transfusion or she would die. She consulted with her Mother and chose not to have the transfusion. She had been co-erced by her Mother.
-Just the fact that we go into a tube station is part of consenting to normal incidents.
-Sometimes, we are assumed to consent to normal incidents of contemporary life.
Collins v Wilcock
-But sometimes even if we do consent, this will not prevent liability. Leach

Harms which cannot be consented to
-Cannot consent to death. Cuddy; R v DPP (Pretty)
Cuddy
Defendant and victim fought a dual in London. Victim died/ victim’s consent was no defence.
-Probably can always consent to harms below actual bodily harm or above (Ags Reference 6/1980); or trifling and transient harms accepted by society. Boyea

-Other harms can be restricted by reference to public policy.
Brown
Consensual gay sadomasochism/ no one ever required medical attention à police broke up the ring. Reached the House of Lords.
à Not about the sexual orientation of the defendants, about their sadomasochism.
In determining consent we have to use the same test for minor and major actions.
à Unpredictably dangerous/ activities getting more and more severe/ corrupting younger and younger men.
à Risk of Aids increased.
à This was more than indulgent sex.
à Injurious to participants and unpredictably dangerous.

According public policy would negate consent.

Contrast case can be found in Wilson
-Defendant had branded his initials into his wife’s buttocksà it was a consensual action, but GP reported it to the police.
à sexual activity between husband and wife is no matter for police investigation.

Consent to risk of harm as opposed to harm itself
Can consent to horseplay. Jones
Can consent to risky sexual activity
[]
Sligsby
Victim had consensual sex involving anal and vaginal penetration.
Afterwards he fisted her, but was wearing rings. She got an infection + died of septicaemia.
Did not batter her, so he could not be found guilty of manslaughter in this context.
So, the better informed you are, the less you can consent to, as you are consenting to the harm rather than the risk of harm. (Totally contrary to medical law à ‘the more you know, the more you can consent to’)

Offences against the person include sexual and non-sexual offences.
The least severe offences are assault (putting someone in fear of battery), and battery (unwanted physical contact). These can include both sexual and mental harms, as well as non-sexual physical contact.

Aggravated forms of assault include both more culpable mens rea elements and more severe harms. Rape is not treated as indecent grievous bodily harm, but as a specific offence with particular rules as to mens rea and actus reus.
Consent to physical contact will sometimes be limited to reference to public policy.

Criminal law lectures: Murder

2009-10-14T15:35:00.000-07:00

-One of the homicides
-Distinguished by mens rea and punishment.
-Mens rea- malice aforethought.
-Punishment- mandatory

Unless the person actually dies it cannot be murder.
Voluntarily manslaughter à You killed someone, but special circumstances mean you should not be found a murderer.
Involuntarily manslaughter à You didn’t have the mens rea for killing someone.

- Unlawfully… (without a valid defence)
- Causing…
- The death…
- Of a living human being…
- But not just within a year and a day!

-Sine qua non causation means But for not ‘But for the conduct of the defendant, the consequence would not have happened’. This can become silly because you can date thinigs back as far as you want. Therefore the law imposes a filter.
à Legal causation
-Causing =accelerating
-General rules of causation applicable to all results crime, most often demonstrated by homicides.

Rules in Legal and Causation
-Culpable element must be a cause of the result, but need not be the main cause.
Dolloway – Defendant in charge of a horse and carriage. Knew the road very well as did the horse. Defendant did not have hands on the reigns. Horse sped down a hill and ran over a child running out onto the road. Dolloway charged with negligent killing à homicide.
Culpable element has to be the cause of death
-The courts very happy to rank causes in order of power, but even so weak causes will male you liable.
Hennigan- an accident à running someone over. If are only 20% responsible for the accident you are treated as a cause.

Benge- foreman of a railgang/ misread a timetable. Had a section of line up when a train came. Benge has to send a flagman 1000 yards up the track beforehand, but only sent him 450 yards. Train derailed. Benge charged with manslaughter. He tried to spread the blame, by blaming the flagman and the train driver. This was not a defence.
You will be held accountable for your liability. Multiple people could be charged with murder.

-Causation can be established by showing it was reasonably foreseeable.
-Intervening acts can break the chain of causation. (have to be voluntarily). You have to have a chain of causation, but a third party gets involved.

Malcherek- Woman on life support machine. After having been severely injured by the defendant. Doctors turned off machine. Did they kill her?
Malcherek- the defendant’s action were a substantial and operational factor in the death.

Pagett – hostage situation. Police surrounded the building. Pagett came out with the hostage as a human shield. Police opened fire and the hostage died. An intervening act has to be voluntary/ free, deliberate and informed. A reasonable act done in public duty is not a voluntary act.

Blaue – Jehovah’s witness who refused blood transfusion after being stabbed.
‘Thin skull’ rule. If you go around committing crimes, you take the victim as find them. It cannot break the chain of causation. The victim cannot break the chain of causation upon themselves.

3 instances doesn’t break the chain of causation;
1) Original injury still a substantial case.
2) Victim died of an event, foreseeable as likely in the normal course of events.
3) They died from a unforeseeable event, which flows from the victim’s characteristics.

Rules of Legal Causation
Application of rules to medical treatment.
In C20th if you injury someone enough so that they have to go to a doctor, you are responsible.
Jordan – Doctors said that the doctor treating the victim had given the wrong treatment. Palpably wrong treatment broke the chain of causation. Jordan walked free.

Smith- Riot in barracks, victim stabbed/ on the way to the doctor he was dropped several times. The treatment received was very poor at the doctors’. Smith hoped that Jordan would be used. It did not help.

Cheshire- Negligent treatment is so frequent to be not abnormal.

-Application of rules to mental suffering and shock where “no external act of violence was offered, whereof the common law can take notice, and secret things belong to God” (Hale). à killing someone by terror cannot be the rejecting basis for criminal liability. Writing in the context of supernatural consequences in common law (but a child of tender years can die of fright).

Actus Reus: the death
-What is death? à legal system resulting reaching for an irreversible definition.
-Conference of Royal Medical Colleges.
-Airedale NHS Trust v Bland à civil case: Bland in perpetual vegetative state
Death = brainstem death.

Living Beings
Now, every human is protected- no outlawry etc.
But when do we become human beings.

Actus Reus of a living being
-A foetus is not a human being. Current legal position
-Must have existence independent of the mother Poulton, Brain à defendant had strangled her child. Whole baby had to be expelled from mother’s body before it was considered a human being.
But liability can accrue for injuring a foetus that becomes a human being. Attorney General’s Reference (no.3 of 1994
Statutory liability for offence vs foetus
-The old rule was that no prosecution for a homicide could lie if death occurred later than a year and a day from injury. Dyson
-Rule was largely abolished in 1996, but a procedural limit imposed (for injuries more than 3 years old). Law reform (Year and a Day Rule) Act 1996 s.1-3
Mens Rea: Malice aforethought
“the ‘malice’ may have in it nothing really malicious and need never really be ‘aforethought’” (Kenny).
-Intention to kill-
Intention to cause grievous bodily harm. Cunningham à You can be found guilty of murder if someone dies. You wouldn’t have been guilty of attempted murder had they lived. Rule = Probably because its hard to determine whether someone meant to kill or not à but easier to prove you meant them GBH
(Separate from causing risk to life)
C.F. objective and constructive malice
The Punishment
-Mandatory life imprisonment
-Meand minimum period for punishment –the “minimum term”(Practice Statement 2002)
-The indefinite detention until no longer dangerous.
-Then released on licence, not free.
-Why a mandatory, fixed punishment à flags the uniqueness of the crime
Summary
-Murder is unlawfully killing a human being with malice aforethought.
-Killing means accelerating death, and must be a legal result of the defendants actions.
-A human being is any person who has been born.
Malice aforethought is intention to kill or cause grievous bodily harm.

Criminal law lectures: Mens Rea

2009-10-14T15:32:00.000-07:00

Crime =actus rea + mens rea + no defence.
Any crime, except the quasi-crimes of strict liability, requires a culpable mental element - the mens rea.
-Crimes can require intention, recklessness, negligence, or (exceptionally) be of strict liability and require no mens rea.
-The defendants mistake can mean they have no mens rea.

Two defendants can perform the same actions, create the same actus reus, but only onw will be liable. The courts have to try to reconstruct the mental state of each defendant.
A person can be victim of an actus reus, but if the defendant lacks mens rea, there has been no crime. So you can be wounded without anyone committing the crime of wounding.

desire ------> Intention <----- foresight
[]
motive

Most serious statues require intention. You can intend something without desiring it.
Direct intent à you intended to do something.
Indirect intent à you don’t want the means, but you do it to achieve your ultimate end.

-A reasonable person (no insane) must intend the reasonable consequences of their actions DPP v Smith. Objective question about what should have going on in your head.
But the Criminal Law Act 1967 s.8 emphasised subjectivity. Where liability turns on whether he inended or foresaw something you should look at all the evidence. So did that mean that you intended what you actually forsaw? Hyam v DPP cf. Moloney. Certain consequences/ highly probably consequence. If you knew it was highly probable that your actions would kill, you are guilty or murder.
-Relationship remains complex. Hancock and Shankland, Nedrick, Walker and Hayles, Woolin, Matthews, R v MD.
Not enough to knew that harm will follow from your actions. You must forsee it as a moral certainty.
Virtual Certainty from subjective defendant’s perspective. How likely did the defendant think it was?

A mistake as to law will not affect liability. Bailey Ignorance of the law is no defence.
A mistake as to an issue, where that mistake is irrelevant, will not affect liability. Mistke as to the law or its application to you will not affect liability.
-A mistake so that the defendant did not have the relevant mens rea will result in no liability – even if the mistake is unreasonable. Tolson , DPP v Morgan à A person dressed up as a tree is shot with an air rifle, person dies. If you generally believe that person was a tree, you are not guilty of murder.
When the defendant makes a mistake, assess the liability as if the mistake was true.
Transferred Intention
An intention to injure one person will ground criminal liability if another is harmed. Latimer. If you take a punch at one person and they duck and you hit someone else, you are liable.
-But intention will not transfer across offences. Pembliton, McBride v Turnock.
Man got into fight outside a pub, threw a stone and it broke a window. Not guilty of damage to property because intention will not transfer across offences.
-So an intention to criminal damage is not an intention to kill, even if you mean to shoot a car and hit a person instead.
Defences will also transferà your self-defence claim will also transfer.
A mistake must drop down to the level of an excuse.

Justified = lawful + righteous
Excuse = you do not say what you did is right, but you should be excused punishment.

Recklessness
Balances social utility of desired result vs. social disutility of undesired result.
Social utility includes both benefit, and probability of benefit.
Social disutility includes both disbenefit and probability of disbenefit.
Consider ambulance driving vs. road racing.
Recklessness as unjustified risk taking. Was this an unjustified risk?

Cunningham Recklessness
Subjective risk taking. Along with intent, can form “malice”. Cunningham.
You see a risk and you do it anyway.
Statute term for malicious intention + recklessness
Not the state of mind of “not caring less”.
Not evil or inchoate culpability.
-Thus, not recklessness if no foresight of the risk.
Even if unreasonable not to have foreseen the risk. Takes into account incapacity to foresee risk. Stephenson (case of the schizophrenic/ reduced ability to see the risk.

Caldwell definition of Recklessness. If you saw a risk and took it anyway you were reckless. If you saw a risk and took it anyway you were reckless. Also if a reasonable person created an obvious risk and did nothing about it, you would be guilty of recklessness

Abolished, at least for major offences? R. v R and G.
R and G were two boys who set fire to a wheelie bin burnt down a whole supermarket. Refused version of Caldwell à given the boys reduced powers.
Lords rejected Caldwell entirely. Caldwell was wrong, produced injustice, criticised by academics à use Cunningham

Summary
Most crimes require some form of mens rea – a culpable mental state of the defendant. A mistake can be evidence that the defendant lacked this state.
Intention is not motive, desire, or foresight, but can be evidenced by all three.
Recklessness is conscious risk taking.

Criminal law lectures: Actus Reus

2009-10-14T15:24:00.000-07:00

Actus reus - the guilty act
Mens rea - state of mind of the defendant

Actus reus – conduct
- result or consequence crimes (ie murder, ‘I shot someone, they died’)
- circumstances, ie theft/ you can only steel something if it already
belongs to someone else.

Absence of a valid defence à valid defence actus reus + mens rea (liable), but with a justification or excuse for the action, (ie I killed a man because he was attacking me)

-Actus Reus requires a willed act of the defendant
- state of affairs
Winzar v CC of Kent

An omission (ie failure to take action) will generally not ground liability.
[]
however, there are examples à RTA 1988 s. 6 Failure to give a breathalyser sample
when asked to by a police officer.
à P.C. Dytham failed to act to prevent a man being killed.
à Speck was an adult male. An eight year old girl put her
hand on his penis, during which time he became
sexually aroused. He remained passive throughout the
incident. He was found guilty of gross indecency for
failing to discourage her and prevent this event.

When faced with a particular crime, do omissions cover it?
[]
Failure to carry out a particular duty example: You must save your children or elderly parent if they are drowning in a puddle.

Gibbons and Proctor 1913 à Gibbons was the biological father of seven year old victim. Mother was no longer involved. Proctor lived with Gibbons and ran the household with money received from Gibbons. Proctor allowed the child to starve. Proctor found liable because mother had been excluded from the household/ therefore Proctor was regarded by the court to have taken on the ‘moral and legal’ responsibility to look after the child. She had become the ‘de facto’ mother. Gibbon was also found liable of failing to ensure that the person he had obligated to look after his child carried out her responsibilities.

Stone and Dobinson à If you take on duty of care (and exclude others) and fail to carry these out, you become guilty of manslaughter A lodger had become ill. The two defendants looked after her for a bit. Then they stopped. As she was bedridden and unable to get outside assistance, she died.

Pittwood case à Failure to carry out his contractual duty to close a gate when the train came and so people were killed. He was found guilty of homicide.

Fagan ran over a police man’s foot and made no attempt to remove the vehicle à classified as assault. Weight of the man transferred from the car to the policeman’s foot, therefore treated the same as a club being used as an assault weapon.

Miller –Bed mattress on fire after he dropped a cigarette butt/ failed to put it out/ would have been at no personal risk to intervene à therefore guilty of arson.

You require an actus reus and a mens rea

What do you do in a murder case if the actus reus has been and gone before a mens rea? Thabo Meli caseà Where you have a plan, the end result being to kill someone. If they die at the wrong place, you are still liable.

Church case àman lashed out, thought he had killed the person, panicked and tried to dispose of the body in the canal. She drowned.
Court found that he had the mens rea when he had struck her.

Courts don’t take if there is a coincidence between actus reus and mens rea, if there is clear moral culpability.

Actus Reus is very much about omissions

Mens rea = cluster of mental states.
Mens rea does not always have to cover the entire actus reus?
Example: Gay Christian poet wrote about Jesus. Blasphemy not because the
writer published it, but because it enraged Christians.

In some cases the mens rea is very small indeed;

-Prince Case at the beginning of the century. Man convicted of taking a girl under 16 out of the possession of her parents. Did not matter that he thought she was 18. Statute didn’t mention knowledge. []
[]
became the authority for ages, knowledge of case irrelevant in sexual offences
concerning age.

However, recently the Young Man’s defence has been incorporated into statute. If you are under 24, you are only guilt of sexual assault if you knew she was under 16.

Assumption that most crimes require a men rea –Liberal state.
Strict Liability offences are generally a bad thing
Having little or no mens rea in criminal law.

Arguments in favour of strict liability
-Victim’s groups often favour this
-Focus on the consequences
-Makes the law more certain and saves court time.

Arguments in favour of mens rea
-Moral culpability
-Consequences of being found guilty of criminal actions/ social stigma
-Acknowledges differences between an accident and a deliberate action.

“Big” Mens Rea
-autonomy
-moral culpability
-deterrent (if the person does not know they are committing an offence, how will the
deterrent work?)

Criminal law lectures: Introduction

2009-10-14T15:21:00.000-07:00

What is the Criminal Law?
-Criminal Law is the study of the legal rules which determine criminal liability
-About trying to decide whether someone has committed a crime.

Who can take a case to court?
-The state and not the victim
-Brown v Smith (civil case)
-R. v Smith (criminal case)

What happens in a criminal court?
-Jury v judge/ In a civil trial, a Judge makes the decision. In criminal cases, Juries make decisions on innocent/guilty – Judge merely directs the Jury on legal points and decides the punishment.
-Burden of proof: beyond reasonable doubt/ Civil case is based on a balance of probabilities.

Punishment
- Punishment not compensation.
- Criminal record.

What is a crime?
E.g. Murder, manslaughter, assaults, property offences (theft and deception), inchoate offences (attempt, conspiracy and incitement).
Criminal law is not about trying to work out the facts of the case and whether evidence can prove guilt.

-Ann stabs Beth intending to kill her. Beth dies.
-Cat stabs Beth intending to seriously injury her. Beth dies.
-Debs punches Beth in the face intending to give her a black eye. Debs hits harder than she expected. Beth dies

Is Ann worse than Debs and Cat?
Is Ann worse than Debs?
-Or does it make it no difference what they intended, Beth dies in every case.
The Criminal law is interested in
-Action (including the result)
-Mental state
Types of reasons that must be taken into account.

-Ann stabs Beth intending to kill her. Beth dies.
-Beth had cheated Ann out of £50,000 and Ann was just getting her own back.
-Ann has walked in on Beth in Bed with Eric, Ann’s husband.
-Beth was a serial killer trying to kill Ann.
-Defences

Structure of a crime. Three main elements:
-Act (includes result) ACTUS REUS
-Mental state MENS REA
-Defence (or lack of it)

Principles of the Criminal Law
-Structure of the Law
-Actus Reus (act plus result)
-Mens Rea (mental state)
-Defence (lack of)
Principles that underpin the criminal law. The principles the criminal law should aspire to achieve.
Criminal law is about measuring how blameworthy someone is.

Why do we need principles?
-Can’t just rely on intuition and instinct.
-Need principles to measure blameworthiness.

Use the principles to test the coherence of the criminal law and to criticise it.

Principle of Autonomy
-Humans are rational and choose how to act.
-Look at Murder scenarios.
-How would the principle of autonomy apportion blame?

Ann is responsible for death, choose to kill Beth
Debs did not choose to kill Beth, so will be less harshly treated by the law.

-Principle of autonomy explains why he law is interested in Mens Rea (mental state)
CHOICE
But how does the principle of autonomy apply to;
-Young children.
-The insane.
-Those under the influence of drink or drugs.

Interplay between principles of autonomy and welfare

Principle of Welfare
-The purpose of the criminal law is to protect society from harmful behaviour and dangerous.
-Principle of Welfare and:
The insane: Not held criminally responsible, but will secured in a Mental hospital until they are no longer deemed a threat to society.
Those under the influence of drink or of drugs: If Ann is drunk and kills Beth (did not know what she was doing), she should not be held criminally responsible.

-Mens Rea (mental state): Only those who choose to bring about harm should be held culpable BUT what about Debs?
-Correspondence Principle: Mens Rea and Actus Reus (result of the crime)
should correspond. (People should only be guilty for the action they choose to bring about).
-Constructive Crime: When the actus reus goes beyond the mens rea (their actions resulted in an outcome they had not intended).

Contract law Lectures: Frustration

2009-10-08T13:34:00.000-07:00

Nature of the Doctrine
Performance of the obligation has become either impossible or futile.

-Paradine v Jane (1647)
-Taylor v Caldwell (1863)
Two parties had entered into a contract for the hire of a music hall. Considerable expense to do this. Just before the first contract, the music hall was destroyed by fire. Owner of the hall could not perform his obligation. Other party sued to try to recover expenses and damages. ‘Your music hall, your obligation to provide and your risk.’
-Courts interested to see where the business risk lay. If no risk is allocated (unanticipated by the parties) then all obligations potentially ‘cancellable’.
Problem= recovery of expenses.

Davis v Fareham UDC (1956) à Revised explanation of frustration.
Building contractors had entered into a contract to build 78 homes in a fixed period of time. However, chronic shortage of labourers made this impossible. Building company had projected 8 months, it would actually take much longer (22 months). Building company had pitched this venture at a time of demobilisation and chronic manpower shortages. H of L said that this was not frustration. Builders could have built the houses on time had they been willing to pay much higher wages and bought up all the labour in the county. They had not properly assessed the risk of the undertaking.

Contracts are subject to an implied condition that will be excused if performance is impossible without the fault of the contract

Illustrations of Frustration
-Destruction of subject matter (Taylor v Caldwell)
-Personal incapacity (Condor v Barron Knights – One of the band members was ill. Band said they could not perform. Court said performance was not impossible, just more difficult).
-(persistent) illness/absence (Shepherd v Jerrom – Worker did not turn up for six months. Then he did. When he turned up, his employer said he no longer worked there anymore. Worker had been in prison for the previous six months, uncertainty had frustrated the relationship. ‘We didn’t dismiss, the contract collapsed around us’).
-non-occurrence of an event (Krell v Henry – Coronation of Edward VII. A group of people hired a flat overlooking the procession. A third of the price paid as an initial deposit. Two days before the procession was due, it was cancelled. Owner wanted deposit and balance for expenses incurred whilst preparing the flat.
£25 already paid/ frustrating event/ £50 still to pay
Consequence: Obligation to pay balance was discharged. Deposit was not recoverable and balance was not payable.
-supervening illegality (Denny Mott v James Fraser)
-industrial action (The Nema)
-the effects of war (Finelvet AG v Vinava Shipping)

Limitations on the Doctrine
The contract must not still have some surviving purpose-
Herne Bay Steam Co v Hutton (1903)
Review of the Fleet. King cancelled. Steam boat still there. Court said that the Contract had not been frustrated because the fleet tour could still be carried out.

Tsakiroglou v Noblee and Thorl (1962)
Journey through the Suez Canal from Sudan to Hamburg (regular route taken for shipping). Suez crisis led to the shutting down of the passage. H of L said contract was not frustrated. Could still be carried out using the Cape/ always part of the business risk.

Self-induced frustration
Maritime National Fish v Ocean Trawlers (1935)
Hiring of trawlers for fishing. Defendants had 5 trawlers and entered into a contract to supply them for use. However, the Gvt. Only gave them 3 licences. Plaintiffs who had been expecting 5 trawlers sued the defendants for breach of contract.
The defendants pleaded frustration. However, the Court said that this was self-induced frustration because they had entered into the contract before ensuring that they had adequate licence permits.

Events Foreseen and Provided for
Jackson v Union Marine Ins (1874)
Land
Contracts for the sale of land can be frustrated.
Amalgamated investment v J. Walker (1976)
Development potential of land had disappeared when land was declared listed. Contract – had it now become impossible à frustrating events need to occur before frustrating events arise.

National Carriers Ltd v Panalpina (1981)
Plaintiff leased a warehouse to the defendant for a year. In May 1979, the local authority closed the only access road to the warehouse because of the dangerous condition of the road. The closure was to last 18 months. Plaintiff claimed rent due. Defendant claimed that the lease was frustrated by the closure.
- H of L said denial of access to the warehouse was not sufficiently serious to frustrate the contract. Doctrine of frustration will apply to leases, but only in exceptions in circumstances.

The Effect of Frustration
a) at common law
- the contract is automatically terminated;
- only future obligations are discharged, those which arose prior to the event still survive…
Chandler v Webster (1904) 1 KB493
£25 deposit paid –led to many cases with unsatisfactory results.

At common law (cont)
Recovery of money paid will be allowed if there has been a total failure of consideration.
Fibrosa Spolka Lawson (1943)

However, there can be no recovery for which work done before the frustrating event but for which payment was not yet due.
Appleby v Myers
b) Law reform (frustrated Contracts) Act 1943
Section 1(2): money paid or payable prior to frustration.
Changes Chandler & Webster decision. Deposits can be recoverable.

Law Reform (Frustrated Contracts) Act 1943
Section 1(3): compensation for a valuable benefit.
If a party has obtained a valuable benefit, the other party can obtain compensation, to the extent that the court considers just in all the circumstances. The benefit must survive the frustrating event, however, otherwise there can be no recovery.

BP Exploration v Hunt (1982) 1 All E.R 925
Libyan oil industry nationalised/ ruined business deal/ Court tired to apportion the losses fairly.

Contract law Lectures: Mistake

2009-10-08T13:01:00.000-07:00

Contract contaminated by a fundamental mistake.
Blame is not an appropriate reaction.
Apparent that one or both sides were completely misunderstanding the environment they were in.
Mistake to be fundamental ‘I never intended to make that contract’.
-In exceptional circumstances, court may declare contract void.

Some contamination at the time they made the agreement.
Confusion as to whether there are two strands of law operating in this area.
-Common law + Equity

(Read judgement of Lord Philips MR in Great Peace Shipping v Tsauliris Salvage 2002) a re-established Common law as the only means of dealing with contract law.

1) Common initial mistake
Mistake as to the existence of subject matter.
Couturier v Hastie (1856)

Two commercial traders negotiating for the sale of a large assignment of corn. Both believed that the corn was on a ship heading from Salonica to London. What they didn’t know was that well before they had made their agreement, the corn had rotted away and been dumped.
-Was it possible to make a binding agreement when the subject matter did not exist.
a Court declared the contract void.

This case concerned specific goods. Mistake affects the contract, but no the consequences of the agreement (i.e. sub-contracts following from the buyer’s sale). Where there is a contrast for specific goods, and those goods perish, the contract will be void.

McRae v Commonwealth Disposals (1951)
Defendant put out to tender the right to salvage a wrecked tanker. When the plaintiff sent an expedition to the start the operation, it turned out that the tanker + the reef were not there.
à Buyer had relied on defendant’s statement. Both parties believed that there was a tanker to be salvaged. Co-ordinates and bearing did not led to the tanker.
-The Court was concerned with the way the contract had been constructed.
Not a mistake, but a failed promise.
[]
One trigger is reliance (when people have gone to considerable expense to carry out an agreement)

Found to be in breach of contract.

Mistake as to quantity of subject matter
Bell v Lever Bros (1932) was the leading case.

Two directors of a company. Chairman of the company had fixed term of employment for five years.
Lever Bros. wanted to get rid of the Chairman and so offered him £30,000 compensation. He agreed and left the company.
-It was later discovered that the Chairman had been mismanaging funds through various shady dealings. They would have had the grounds to sack him without compensation.
[]
Lev. Bros tried to sue him for the £30,000
Mistake
H of L said that the contract had been binding. They were not confused as to what they were doing. Lou. Bros. got what they wanted (the Chairman had stepped down).
Therefore no mistake had occurred.

Leaf v International Galleries
Galleries sold painting to Leaf attributed to be a Constable. Market value much higher for a genuine work. Leaf bought it and 5 years later tried to sell it to Christies. Christies evaluated it and said it was a fake.
-Leaf tried to get his money back from International Galleries.

However, Galleries had not guaranteed it was a genuine. Leaf had made a mistake as to the value of the painting.
-Then Leaf tried to turn the case into the misrepresentation claim. Leaf lost the claim for an equitable remedy because it had been 5 years.

Great Peace Shipping v Tsauliris Salvage (2002)
Ship in the Indian Ocean and in distress.
Tsauliris contracted to go and rescue the ship and crew. Both parties believed the rescue ship was 35 miles away. But it was actually 410 miles away. Minimum payment required for 5 days work required.
-When Great Peace discovered how far the ship actually was for the vessel in distress they contracted another firm to get salvage vessel into the area.
- Part of the standard agreement with Tsauliris was a minimum 5 day hire period.
Great Peace told them not to bother. Tsauliris sued.
-Great Peace said that there had been a mistake.
Would have chosen a different company if they had had accurate information about where their ships were in the first place.
[]
Court said contract was void.

Great Peace then wanted an equitable remedy. H of L said no. If contract is not void, then it is valid à therefore no equitable solution.

Consensus mistake

Mutual Mistake
-Raffles v Wichelhaus (1864)
Two parties in Liverpool discussing sale of cotton.
125 bales of cotton sold during ex Peelis Bombay.
-By chance there were 2 ships from Bombay with the same name carrying the same cargo. But due to leave at different times.
-One party thought it was one ship the other party thought it was the other.
-When ship arrived, buyer did not get his cotton.
[]
Courts said that this was a consensus mistake. The contract was void because there had been no meeting of the minds between the two parties. Sub-contracts from the buyer’s viewpoint now ruined/ he could now be sued by those third parties.

Unilateral Mistake
Mistake as Identity

Original owner---------------------------------à‘Rogue’

contract?
Pass title?

The original owner will probably
say the contract between him and
the rogue was based on mistake.
Original owner acting in good faith
does not know that he is dealing with a
conman. Sells something in exchange
for a cheque (which turns out to be
worthless. Rogue then sells the goods to
third party and disappears.

Passes possession
Passes title

Innocent Third Party

Phillips v Brookes (1919)

Rogue impersonated someone. Gave a worthless cheque for £3000 + then sold the jewels to a pawnbroker for a few hundred before disappearing.
Both Phillips and Brookes have a claim to the property.

Phillips ------------------------------------à ‘Rogue’
(Jewellers) Title-contract?

Pearls + ring

Brookes Ltd
(pawnbroker)

(Side note: Signing a document means you have read and understood all of the above).

Contract law Lectures: Breach of Contract

2009-10-07T15:10:00.000-07:00

Discharge of contractual obligations
How can parties to a contract be discharges from those obligations?
-Performance of the obligations;
Discharges when you perform it, or if the other party fails to perform their part of the contract.
-Breach of obligations
-Agreement to discharge/ variation of contract;
Vary the original contract by agreement or agree with the other side that you don’t have to perform it.
-Frustration of contract
Impossible to keep promise. Victims of frustration are discharges from their obligations (i.e. concert hall burns down).

Performance must generally be precise and exact

Moor & Landaeur (1921)
Two commercial parties entered into an agreement to sell tinned fruit. To be packed into cases of 30 tins each –shipped to the contractor.
Commercial buyer seeking a way of out of the contract. Found out that they had been packed in cases of 24 tins, not 30. Refused to pay for the tins or to accept the goods. Other company tried to sue for breach of contract. They failed.
(Although H of L now recognises it would probably make a different decision now a days).

Arcos v Ronaasen (1933)
Similar case- timber dealer. 5 % of the goods did not quite match specified criteria. Seller lost out.
House of Lords would not rule the same on this case. Opens up a chance for those who want to abandon their contractual commitments due to market changes which have suddenly made the deal less lucrative.

(both cases now turn on s.13 of the Sale of Goods Act 1979 – but now see s.15A)
If the failure is so slight than it would not be reasonable to reject them, you cannot leave the contract.

Partial provision of services
If the contract or obligation is ‘entire’, performance must be complete to discharge.
-This applies to goods and services
Cutter v Powell (1795)
Contract drawn up between master of a merchant ship and the 2nd mate. 4 pounds a month wage. Cutter would receive 30 guineas upon arrival at Liverpool after the return voyage. However, he died on route 10 days before the ship arrived. His wife tried to sue for the arrears owed. But the court ruled that the contract was only valid upon performance of the whole agreement.

Divisible Contracts or Obligations
Compensation can be recovered for partial performance if it can be argued that the contract was divisble into sections (an argument that failed in Bolton v Mahadeva (1972).
-Defendant installed central heating system. However, boiler produced fumes and the radiators he did install were fairly ineffective.
Plumber had agreed ti a lump sum payemtn of £560. The total cost of repairs to the system would be £174. Owners refued to pay him. Plumber sued for his wages.
Court said that half-installing the system did not count as a central heating system. He had not fulfilled his part of the contract and so therefore would not be paid.

Non-performance due to promise
Promisor will be able to claim on quantum merit basis

Equityà in some cases, someone who has not performed their contract will (when it is seen to be fair) be able to claim something in recognition of what they have done. ‘Usually the person sueing the other party is trying to fulfil the contract, but is being prevented from doing so’.

Planch v Colburn (1831)
Publisher agreed to publish a book. An author agreed to write this book. However, the publisher went bust and the author stopped writing. He couldn’t sue for breach of contract because he himself had stopped fulfilling his side of the contract.

Acceptance of Partial Performance
May have the effect of discharging further obligations,
This will not apply where the acceptor has no real choice.

Sumpter v Hedges (1898)
Builder agreed to build two houses. Lump sum payment. Halfway through he ran out of funds and walked away. Builder wanted money for partial performance. Houses useless because they were only half-completed. Man decided to complete the work himself. Since the builder had been the cause of the problem in the first place, the Court did not feel he should benefit from this. However, he did receive some compensation for the material used to build his part of house.

Time of Performance
Time is not generally ‘of the essence’ unless the contract makes it so
(c.f. s.10 of the SGA 1979).
Bunge Corp. v Tradax
H of L’s decision. Buyer and seller/ 50,000 tons of Soya bean meak. CIF contract (so the buyers had to tell the sellers what ship was to be sued and to designate the port). Buyers had to give at least a 15 day notice. Howver, they only gave an 11 day notice and so the sellers refused to go through with the contract. Other party sued for breach of contact. H of L said that the 15 day notice period in the contract was an essential element in the agreement.

Time may become of the essence by giving notice.
-If there is an expressed declaration, the time clause will have been built in.

Rickards v Oppenheim (1950)
Domestic consumer ordering a car to be manufactured. Not date stipulate. After many months, the consumer wrote to the manufacturer to say the if he did not receive the car within a month, he would repudiate the contract. Consumer introduced time change and builder agreed. However no car was delivered so the consumer walked away from the contract.

Discharge by Breach
Only ‘repudiatory’ breaches lead to discharge.
The effect is not automatic, but depends on the acceptance of the breach as repudiatory by the innocent party.
Gunton v London Borough of Richmond (1980)
If you are the victim of a failure of the other party, you are entitled to walk away. But it is not compulsory.

Classification of Terms
‘Conditions’ and ‘warranties’.
-Breach of condition is repudiatory;
-Breach of warranty allows only damages to be recovered.
c.f. Bettini v Gye (1876) with Poussard v Spiers (1876)

Labelling of Terms by the Parties
Indicative – but no conclusive
Schuler AG v Wickman Tols Sales Ltd (1873)
Intermediate terms
Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha (1962)
Whether the breach is repudiatory will depend on whether its consequences deprive the other party of ‘substantially the whole benefit’ of the contract.

Instalment Contracts
The effect of the breach will largely depend on its extent
s.31 SGA 1979 and c.f.
anticipate the likelihood of the breach will be repeated. Look at which proportion the goods the breach is in.
- Maple Flock Co Ltd v Universal Furniture Products (Wembley) Ltd (1934)
100 tons of rag block was supposed to be delivered at 5 tons a week. Broken just once and the buyer wanted to repudiate the contract. Seller said that it only failed on one shipment and would compensate the buyer for this mishap.
Court ruled that the buyer had over reacted and the contract was still intact.

- RA Munro & Co Ltd v Meyer (1930)
If you have an obligation, you have to perform these obligation.
We will deliever 10,000 tons of x by 10 month time period.

Types of Breach
-Repudiatory breach Rigby v Ferodo Ltd (1987)
-Anticipatory breach
Hochster v De La Tour (1853)
White & Carter (Councils) v McGregor (1962)
Right of election
-Vitol SA v Noreif Ltd (1996)

Discharge of Contract by Agreement/Variation
Illustration- the contract of employment.
-Hawker Siddley v Rump (1979) I.R.L.R. 425
-Jones v Associated Tunnelling (1981) I.R.L.R. 477
distinguish a change in the terms of the agreement from a change in which an agreed role or task is to be performed.
Cresswell v Inland Revenue (1984) I.R.L.R. 190
Group of clerical tax coders did their work the traditional way using calculators and paper. Inland Revenue wanted to introduce computer software.
Workers refused to use the new system. Inland revenue locked them out. Workers claimed that wanted to fulfil their obligations. Inland revenue said that they would be doing so, but in a different way. Workers said that this was not part of the agreement.
à judgement – now employees have a an implied term in their contracts that they will adapt to new technology.

Unilateral Changes
However, unilateral changes to the “core elements of a job amount to a breach of contract.
-Burdett-Coutts v Herts. C.C. (1984)
Dinner ladies in schools having their rates of pay cut in their contracts. ‘If you turn up to work it is a sign of acceptance’ argument never works.-Rigby v Ferodo Ltd (1987)

Contract law Lectures: Misrepresentation

2009-10-07T15:07:00.000-07:00

Misrepresentation
Mistake These can be used as claims that the contract is
Duress unenforceable
Undue Influence

If you found your bargain was contaminated it may collapse when tested in a court of law. Contracts came into being because people have made negotiations. These negotiations will consist of statements;
-If one of the parties is given information, that later turns out to be a false statement = misrepresentation.

Voidable à at the point that you make the declaration, your contract does not count.
It is alive and running, but you can avoid it.

Terms of the Contract or ‘mere representations’

Representation à something that was said generally during the preambles/ sale banter
Term à something which Court believes the parties intended to be binding to the contract.
If product does not meet standards promised, it would not be a breach of contract, but misrepresentation. Misrepresentation is not a contractual plane, but a pre-contractual one.

Oscar Chess v Williams
Two parties negotiating sale of car with part exchange.
Williams under the impression that he was trading in a 1948 Morris Car
[]
However, his car registration model document had been tampered with. He actually had a car worth considerably less (1939 model) He did not realise this.

Car dealer gave far too generous an allowance for the car.
When dealer discovered the truth he sued for breach of contract.
-However, no expressed term in the contract that it was a 1948 model/ so no breach of contract.
à At the time, no remedy for innocent misrepresentation.

The false statement must be a statement of fact one that can be ascertained to be true or false.
1) à Statements of law
2) à Statements of opinion – where a non-expert is speculating. However, statement of someone with experience can be converted from opinion to fact.

Bisset v Wilkinson (1927)
Man owned a farm in N. Zealand.
Wilkinson wanted to buy it and set up a sheep farm. He asked how many ‘sheep could import on this farm’.
Bisset said it could support 2000 sheep (v. optimistic estimate)
[]
Has an effect upon how the buyer views the price.
Wilkinson tried to sue for breach of contract.
But nothing in the contract about 2000 sheep
à So Wilkinson sued for misrepresentation. Victim of false statement of fact.
Only an opinion from a non- sheep farmer. Had Bisset been a sheep farmer, his statement would have considered highly erroneous.

Esso Petroleum Co Ltd v Mardon (1976)
Mardon wanted to take a lease from Esso.
Put a lot of money into a business plan involving a shop and petrol sales.
-Esso sent an expert to assess the site. The expert specified that some 200,000 gallons of petrol would be sold. In reality this was no way near reality.
-Mardon had a pre-conditional complaint. Contract itself stood, but there had been misrepresentation before hand.
à Court of Appeal took the side of Mardon. An expert’s opinion could be taken as fact.

3) à Statements of Intention
Edgington v Fitzmaurice (1885)
Directors of a company, knowing full well it was in trouble sent a prospectus to the public offering share subscription with a view to company expansion.
[]
However, the directors would obviously have known that they would have to use any money received to pay off existing debts. If you say that you are planning to do something, when you’re actually planning to do something else, you are misrepresenting.
-State of mind becomes crucial.

Silence
As a misrepresentation of fact.
-Not under an obligation to make a statement. But if you do say something and then fail to say what would follow, you could be in difficulty.

Change of circumstances
With v O’Flanagan (1936)
Doctor selling his practice to another doctor. Information exchanged concerning no. of patients and turnover of the practice. Two parties did not speak to each other between the six months of when the handover was due to take place. During this time the seller became ill and his practice declined considerably. Seller did not tell the buyer.
His silence was a misrepresentation.
-If seller had not given information in January, it would not have been possible to argue silence.

-Confidential/ fiduciary relationships.

Must be Material
False statement of fact must have some kind of significance or bearing on the contract you’re undertaking.
-Objective test adopted by the Court à Would a reasonable person have taken the issue into account?
Would the facts be material to this person about to enter into the contract?
Did they rely on that fact? à their own experience + intelligence is another issue.

JEB Fasteners Ltd v Marks Bloom (1983)
Company being bought out. Purpose to get the directors rather than the company.
-Looking at the accounts/ They were faulty and inaccurate.
Tried to get out of it by arguing that the balance sheet was a misrepresentation.
-Court refused to allow this because they were after the directors and the balance sheet had nothing to do with their true motivations for the purchase of the company.

Reliance
Edgington v Fitzmaurice, above,
Redgrave v Hurd (1881)
Two solicitors discussing possible sale of a practice.
Information- Turnover, client
Seller told he buyer that he check the facts himself.
-When he got the practice, it did not have the client and jobs he had been promised.
Can you claim to have relied on something when you had the chance to check something and you did nothing? But in this case, Court ruled that you do not need to investigate every fact and there had been misrepresentation.

Smith and Bush (1990)
Two first time buyers went to a building society to buy a home. Building society carries out survey for them. Not a full evaluation/ but basic.
à Buyers bought property through Building society and had relied upon the society’s report à survey contained significant errors, buyers would never have taken the house if the report had been accurate.
-Building Soc. + Surveyors argued that the survey was the Societies’ benefit, not the client (even thou, the client paid for the survey and received a copy of the survey).
-Lords said that the consumer had relied upon the BS survey and therefore they won the case. However, the Lords also said that if this had concerned a commercial property, the consumer would have been expected to carry out their own survey.
à Two Tier policy?

Three categories of misrepresentation
-Fraudulent -Innocent -Negligent

Common Law Misrepresentation
Originally at common law, only two types of misrepresentation were recognised:
1) Fraudulent misrepresentation
Derry v Peek (1889)
You could get significant damages and contract might even be rescinded.
2) Innocent Misrepresentation
Oscar Chess v Williams
No evidence that Mr. Williams knew about the misrepresentation à no common law remedy.

Negligent Misrepresentation
a) At Common law
Esso Petroleum Co Ltd v Mardon (1976)
b) Under Statute
Misrepresentation Act 1967, s.2(1) see booklet

In Common law, the burden of proof is upon the claimant. They would need to show that the other party was careless.
In Statute, the other party would need to show that they were careful. The burden of proof would be upon them.

Howard Marine v Ogden (1978)
Parties negotiating for the use of barges- Preamble
Manager of the barge hire said that these barges could take 1600 tonnes.
However, the barges could only carry 1055 tonnes.
[]
Gap in time
à They bought two barges à when they discovered the truth, they tried to repudiate the contract.
-Manager said that he believed that the each barge could hold 1600 tonnes because he had read it in the Lloyds register à reasonable grounds of belief for a defence?

The actual registration documents of the barge showed the actual tonnage capacity. Had he bothered to check this important document, he would have known the correct answer.

Contract law Lectures: Terms of Contract

2009-10-07T14:40:00.000-07:00

When is a term a contract?
Some terms are more important than others.
Express terms
Inducements and terms distinguished
The statements and intentions of the parties
Law of contract decides whether there is a condition or not
-Gill & Duffus SA v Societe…des Sucres SA (1985)
Two buyers were buying and selling sugar.
Defendant would name the port and ship where the goods would be loaded on by the 14th November. Buyers had an obligation to name the ship/ to name the port.
-The 14th Nov. came and went and party did inform seller what they wanted. Buyers walked away because buyers had not fulfilled their contractual obligations. They regarded the date as not only a term of the contract, but a condition.

-Courts will at the extent of the agreement.
Courts agreed with the sellers that the buyers had broken a fundamental condition of the contract (rather than a term).

L Schuler AG v Wickham Machine Tool Sales (1973)
Schuler was contracted to be the agent and visit and solicit orders from six clients.
When Schuler failed to visit all the clients, Wickham terminated the contract with Schuler. They said it had been a condition that these visits were carried out.
House of Lords decided that this had not been a condition/ simply referred to regular visits.

Express Terms
The nature of the statement
If both parties had intended the statement to be a term of the contract than it is.

-Howard Marine v Ogden (1978) (barges case)
Why was the weight of the barges not a term of the contract. HM did not intend tonnage to be a term of the contract.

-Bannerman v White (1861)
Two farmers buying and selling hop. Plaintiff told the defendant not to bother quoting a price if the hops were contaminated with sulphur. He was quoted a price and so he bought the hops. It turned out they were contaminated. Buyer won the case –even though no express terns had been made.
Have to convince the court that the other side also intended it be binding
Have to look at context/intention/relevance

-Routledge v Mckay (1954)
Seller was not a motorcycle dealer. Seller claimed it was a 1942 model. Deal goes ahead. It turns out it was not.

Oral statements later put into writing
J. Evans & Son v Merzario (1976)
Long standing relationship. Had always insisted that their gods were stored below deck. Industry practices changed and goods were now boxed and kept on deck. J. Evans rang Merzario and agreed that the traditional arrangement would continue.
However, it did not and the goods were lost overboard during a storm. Insurance would not cover it. Merzario said that the arrangement was not part of any contract.
-Court decided that the oral assurance overrode the printed conditions.

As a general rule, that which is written will trump which is spoken.

When is a term a term? à When it is important to both parties.
à Parties need to be aware of the terms.
à When it is highly important to the deal.
à before the contract has been concluded.

Incorporation of Written Terms
…into an oral contract;
“ticket” or “notice” cases:
Olley v Malborough Court (1949)
Mr and Mrs Olley checked into a hotel. Note on the back door “proprietors will not hold themselves responsible for personal belongings lost or stolen” –exclusion clause. At the time of this case, the phrase was capable of excluding the hotel owners.
While they were out their room was burgled. The hotel had left the master key out.
Hotel said that the exclusion cause exempted them from responsibility.
-Court had to ask when the contract was concluded. Anything you find after the contract had been made cannot incorporated into the contract. This contract had already been made when they agreed to take the room before, the couple saw the sign.

Thorton v Malborough Court (1971)
Interfoto Picture..v Stilletto Visual..(1988)

Conditions and Warranties
Bernstein v Pamson Motors (1987)
Once court has decided it is part of the contract, it must then decide whether it is an important or not.
-Promise that gets to the heart of the matterà condition
-Minor promise à warranty

Contrast Poussard v Spiers (1876)
Opera singer who didn’t show. Had to go to the rehearsals – she said this was a minor promise – she had still not not fulfilled the main condition of the contract and there was a possibility she might be able to attend the opening night. Organisers decided that she had committed repudiatory breach of contract. Courts agreed.

Contrast Bettini v Gye (1876) 1 QBD 183.
Italian Opera singer in London, didn’t turn up to rehearsals – It was accepted this was a breach of contract. The organisers rebutted the contract. Singer argued that this was not merited as he was still willing to attend the main concert. Court said it was not repudiatory breach.

Implied terms
Judicial terms…based on implication according to parties’ intentions.
The Moorcock (1889) per Bowen LJ
Cargo to be brought to wharf by ship and offloaded. However, the ship ran aground due to low tide in the wharf and was seriously damaged. Owners of the ship decided to sue the Wharf owners. What assumptions would you make in the agreement to use the wharf?
Ship owners assumed it was safe. Implied term that the ship would be safe.
[]
You can put words into your opponent’s mouth. Very useful judicial mechanism.
[]
In the interests of reasonableness
Court said business ethicacy was very important. Not sensible that a deal should collapse this way.

Once you are using words like ‘surely’ then are approaching the realm of implied terms.

Liverpool City Council v Irwin (1977) –limits to implied terms
Poor facilities in Council flat (block tenants) argue that the Council is in breach à so tenants withhold their rent.
The implied term is the minimum that need to be done for the contract to work.

The modern basis for implication of terms.
a) the intention of the parties; -implied term bases upon their behaviour (Jones v Assoc. Tunnelling Co. (1981)
b) business efficacy – we are going to imply that this jetty has enough water because there is no other way to make the deal work (The Moorcock 1889)
c) obvious consensus – 10th floor flat (Liverpool)
d) reasonableness; B.A.C. v Austin (1978) IRLR 332

Mrs Austin was a spot welder. Employer made available protective goggles.
Austin wore spectacles and could not wear the goggles. Austin asked her supervisors to provide her with a pair. After six weeks of nothing happening she left and then sued for constructive breach of contract.
[]
There may not have been an expressed term to provide this equipment and H & S regulations did not apply here. Nonetheless, a degree of risk was identified. Hence goggles were being given to some but not to others. In breach of an implied term to treat employees equally.

Statutory Implied Terms
Statute is a huge source of terms of contract

In employment…
-Equal pay Act 1970 (the “equality clause”)
-Employment Rights Act 1996
-right not to be unfairly dismissed
-redundancy payments
-maternity rights

In commerce…
Sale of Goods Act 1979
-s.12 title
Rowland v Divall (1923)

Divall -contract £334 (for sale of goods)
[]
[]
Rowland - buys it contract then sells it for £400
[]
[]
3rd party
[]
Police--------------------------àTrue owner

Although you may have possession, you cannot own stolen goods. Deed of title is never given.
The car had been stolen property, returned by the police to the true owner.
Rowland sought his money back from Divall
Divall was innocent of theft.
Implied term that the seller was the owner of the car.
Divall was therefore held to be in breach of promise he did not even know he had made.

-s.14 (2) quality
Crowther v Shannon Motor Co. (1975)Rogers v Parish (Scarborough) Ltd. (1987)

Contract law Lectures: Intention

2009-10-06T15:37:00.001-07:00

Certainty in offer + acceptance
Clarity so that a 3rd party (like a Judge) will be able to identify it as a contract.

Scammell v Ouston (1941)
2 parties discussing the trade of motor vehicles
Person wanted a certain van, price agreed.
Said he would take it on “the usual HP terms” à v. vague…
Buyer refused to carry out the transaction
Litigation carried out à court said that this was not a contract, there was too much uncertainty in the terms.

‘On our usual terms’ is not necessarily vague if the court is able to go back to previous transactions which are clear/ then the agreement can be enforced.

-Service contract
accountants cannot give a final cost of work until the job is finished. How much might a taxi journey cost? à Does the contract fail because of lack of certainty?
However, s.8 (2) Sale of Goods act 1979 states that a reasonable price based on a set formula would be acceptable for a contract.

-Meaningless phrases
Nicolene v Simmonds (1953) 1 All ER 82
The court will strike out meaningless phrases

Incomplete Agreements
British Steel v Cleveland
Bridge Eng

Cleveland British Steel
Request ----------------------------------->
(109 steel nodes)
---------------------------------------------> Estimate

Letter of intent--------------------------->
‘We intend to go into
formal negotiations with
you, could you please start
production of these steel nodes’

---------------------------------------------Commence work

Change in Specs.-------------------------->
Delivery in sequence---------------------->
-------------------------------------------->Formal Quotation

MEETING (nothing resolved)
---------------------------------->All but one node delivered

NATIONAL STEEL STRIKE

Cleveland Bridge suffered
Huge penalty clauses ------------------->Final Steel Delivery is late
From local authority they
Had been building for

Litigation followed
-No penalty clause against British Steel because there no contract
No agreement was made. Technically, title of the steel had never been lost by British Steel
-Court decided that a Quasi-contract had existed.
BS entitled to reimbursement for raw materials only in building the nodes.

Intention (to create Legal Relations)
Court is only giving an agreement the status of contract if the court is convinced that their agreement could be controversial.
Domestic agreements à no presumed intent to create legal relations therefore no contract.

Balfour v Balfour (1919)
Civil servant husband sent to live in Ceylon
Wife did not go with and was supposed to be receiving maintenance from her husband.
Husband did not pay. Wife sued for breach of contract
Goes to Court of Appeal à Still a domestic agreement (Common law obligation from husband to support the wife), no legal relations established.

Meritt v Meritt (1970)
Separated couple planning their divorce.
Husband signed an agreement with the wife to pay the mortgage.
Husband didn’t pay à wife had to pay the arrears.
Wife said he was in breach of contract and was therefore not entitled to half the equity of the house. Husband said they were not using the law of contract, but the law of property.

Lord Denning argued that although it started off as a domestic agreement, it became intent to create legal relations given the financial arrangements being made for divorce.

Jones v. Padavatton (1969)
Daughter lived in the US, mother lived in the UK.
Mother said that if daughter began reading for the Bar and gave up her job in London she would pay her maintenance and rent in London.
-Agreements never signed.
Daughter took 5 years to pass her year I Bar exams and pocketed the rent for the house.
Mother went to Court to evict her daughter after a dispute.
Court ruled
-Lack of intention.
-Lack of certainty.

Commercial agreements
Pendagron plc v Jackson (No.2)
(E.A.T.)
-Share intention scheme –contract clearly in place.
-employers didn’t need to contribute
-lock-in period for executives. They receive share reward after years.
-Not part of the original agreement and nothing had to be given in return (gift?)
One of the executives fell out with the directors and having served the requisite number of years (5 years) he left and demanded his shares (about £13,000 worth).

Court said that despite the company describing the share scheme as ‘non-binding gratituty’ this was irrelevant. In commercial terms, the executive had served the 5 years and could have gone elsewhere and therefore a contractual agreement existed.

Noble Enterprises v Lieberum
- incentive scheme to hit target
-conducted outside the law of contract, no individual consultation.
Signals had been given out by the company that this was not a regular contractual agreement.

Capacity
Doesn’t usually tend to be the main problems in commercial terms e.g. someone under 18.

Illegality –Overview
Sources of illegality
-illegal under statute
-illegal at common law
(don’t worry about the headings, worry about the principles)

A contract that is contaminated because there is some illegal element, may not be enforced.

Consequences of illegality
‘void contract’ – it never happened or came into being. No rights could possibly have passed to anyone.

Contract is ‘voidable’ – contract did happen, but somewhere along the line illegality set in. We will count the contract up to that point and then draw the line.

Statutory Illegality
a) express prohibition
Re. Mahmoud and Ispahas (1921)
No one will be able to sell stocks and shares in London without a licence
Broker was unlicensed and the other party refused to pay commission
-The Broker had to come to litigate on an action that was in itseld illegal. Didn’t get anywhere

b) Implied illegal in formation (dependant on arm of the legislature)
Arhbolds (freightage) v. Spaghetti. Ltd (1961) fictitious case

Highways act regulates road use. Class A licence required for carrying spirits. They were carrying some whisky, which was stolen from them on route à no Class A licence.
Owner could have sued for breach of contract as goods has not been delivered, but the action of the carriers was illegal.

What did each side know?

It could be argued that, in accordance with the mischief rule, the contract is still valid because the illegality was not relevant to the innocent cargo owner. (If he didn’t know about the lack of licence.

b) Illegal in performance
St. John Shipping v J. Rank limited (1956)
Overloaded ship.
Contract became enforceable because of the way it was carried out.

Where there is a contamination in the contract, you may be able to avoid this by recourse to statute rather than contract law.

Acts illegal at Common Law
-Contracts to Commit a Crime/ Civil wrong
Alexander v Rayson (1936)
-Contracts prejudicial to the Administration of Justice
Harmony shipping Co. v Davis (1979)
-Contracts to Oust the jurisdiction of the Courts
Williams v Williams (1957)
-Contracts corrupting Public service;
-Contracts prejudicial to marriage/family
-Sexually Immoral Contracts.

The Effects of Illegibility
-Saunders v Edmunds (1987) 2 AFR 651
Saunders and Edwards involved selling someone a flat. They gave a description of the flat to the estate agents who wrote it down exactly as they had described it.
-They claimed to have a roof garden. However, they failed to mention that the ladder connecting this roof garden was illegal and they had no rights to use the roof.
They had induced someone to come and but the property à buyers became victims of misrepresentation.

However, the parties had decided to attempt to defraud the Inland Revenue by saying that the value of the house was lower than the Stamp duty threshold.
Contaminated contract makes it v. difficult for you to pursue what claims you do have.

-They decided to sue in the tort of misrepresentation and won £7,500 worth of damages. Judge then reported them to the Inland Revenue and both sets of solicitors to the law society.

Contract law Lectures: Agreement

2009-10-06T15:31:00.000-07:00

The Common law traditionally (and still does) takes a very mechanical approach rather than a broader social view.
à Need to identify when the offer was made and when it was accepted. If you can’t there was no contract. Offer + Acceptance = Contract
à A contract is a promise to do something. Doing something is merely executing the contract.

When is an offer an offer? When is an acceptance an acceptance? How clear does it have to be.

Gibson v. Manchester City Council
A tenant occupying a Council house receives a letter from the Council that they might be interested in selling the houses à Tenant/Council, bundle of correspondence. Gibson asked for consideration to be given regarding defects to the garden path. Over that time, political make-up of the Council changed and they were no longer willing to sell houses (except those houses which they had already agreed to sell during the previous administration). Did Gibson’s bundle of correspondence constitute an agreement?

Offer
(Distinguished from Invitation to Treat[1])

Correspondence
(Gibbon v Man C.C.)

Advertisements
(Patridge v Crittenden)
Does this constitute an offer?
Myth that the display of the word offer in an advert sign constitutes an offer

à Considered an invitation to treat.
à Not an offer (no matter what is says, up to a point). Also applies to newspapers and adverts.
A display of goods is not an offer because of the danger of breach of contract should the stock run out whilst customers were still offering.

Display of goods
(Pharm Soc. v Boots)
Paying the money is never the contract ]- not contractual gestures
Delivering the goods is not the contract ]- these are post-contract events

Has there been a transaction if you put something in your shopping basket?
No. If you drop a bottle of wine, you have dropped something still belonging to the shop. No contract has been made until the till registers the purchase.
You can’t shoplift until you have left the shop’s premises and deprived the owner of the ‘deed of title’.

Auction
(Barry v Davies)
It is had been an announced in advance that it was an unreserved auction.
à If offer is made in an auction, the auctioneer does not need to accept the offer (reserve put on the auction) until the hammer is banged, indicating that a deal has been agreed.
à Unreserved auction, auctioneer agrees to sell to the highest bidder.

Tenders
I the contractor/builder etc gives you a formal quotation à building contract/ if it is an estimation, then it doesn’t constitute a contract.

Websites
Websites that offer you Yes/No
-generally does not constitute a contract because of the stock issue (see advertisement section)
-However, if there is a specific circumstance (such as an automated response) it may constitute a contract.

Termination of Offer
Offers have a ‘reasonable’ life span.
If the offer is for personal services, the death of the provider will terminate the offer.
Revocation à If you make an offer, you can withdraw at any point before it is accepted. As long as this is done properly, ie formal notification of cancellation
Cases: Dickinson v Dodds (1876)
Byrne v Van Tienhoven (1880)

Byrne v Van Tienhoven
New York Cardiff
Oct. Oct.
Post letter (offer) 1000 boxes tinplate 1st
Letter of Revocation 8th
11th telegram (acceptance)

20th Revocation arrives

-Court decided three principles
1) An offer is effective upon receipt (an offer came into being on the 11th)
2) Revocation is effective upon receipt
3) Communication is effective upon receipt
Acceptances (postal acceptances) effective on posting.

Say Van Tienhoven can’t deliver à Breach of contract

Acceptance
-The ‘Mirror Image’

Hyde v Wrench (1840) (Land for Sale)
Wrench Hyde
Offer £1000--------------à

ß---------------------------- £950

<---------------------Hyde hears nothing to so puts £1000 in Wrench’s bank account no title sent ß----------------------------- sued for breach of contract Hyde lost Offer lost à counter-offer – Nothing (no contract) à Counter-offer invalidates original offer ------ therefore contract -Request for information à does not destroy the original offer it keeps the negogiation going –Stevenson v Mclean ‘Battle of the Forms’ The buyer and sellers each want to use their own standard contract and force the other party to agree to their terms. Butler Machine Tool v Ex-cello-o crpn Seller Buyer ß-----------------Enquiry --------------------------à Quotation (£75,000) But bundled with “sellers terms and conditions” [] Price variation clause (price may rise in line with inflation) ß--------------------------------------------Order (offer?) “Buyer’s terms” (did not include price variation terms) Do we have an agreement? ------------------------------------------à Acknowledgement (acceptance?) Court had to decide which was the offer and what was the agreement. [1] Invitation to treat à inviting someone to enter into negotiations.

Contract law Lectures: Introduction

2009-10-06T15:22:00.000-07:00

Contract a way to regulate transactions (commercial + personal)
-Transactions vital to our way of life
-Contract law pivotal to our lives

-Contracts do not need to be in writing.
-They do not need signatures.
99% of transactions are based on contract that does not require written form.
Contract exists whether the piece of paper exists or not.
Contract is a relationship (not a bit of paper)à of promises and exchange which the law will recognise

-However, when asked to prove this relationship, one often produces paper as evidence for this.

Civil Obligations
-Contract
-Tort

Civil Obligations à Obligations imposed by the state upon the individual.
Contract Obligations à Self-imposed obligations (eg. deliver goods for a price.
You are obliged to deliver).
If someone chooses to make these obligations, they have made a contract.

Civil Obligations in Tort- In the law of tort, the benchmark of civil obligations is reasonableness (‘black-ice causes a crash’, explanation possible/ You may not be guilty of tort).
Contract Law – ‘Even if you do your best to fulfil the contract, but not fulfilling it’ –excuses of no interest/ still a breach of contract, objectively speaking.

Regulation of self-imposed obligation
Contract at the root of :
-Employment
-Sale of goods
-Provision of services
-Insurance
-Conveyancing
-Banking

Essentials of a Valid Contract Contracts are an agreement, but not all agreements are contracts.
1) Agreement à Not as simple as it sounds -> car selling- 2 cars- a misunderstanding of the product under what circumstances would the legal system say you were agreed.
2) Intention à Intention that it would be legally binding
Presumption in law àsocial arrangements are not intended to be legally binding, subject to contrary arrangements.
3) Consideration à purely gratuitous gift is not enforceable, ie birthday gift.
However, if ‘someone giving up a couple of hours every Saturday afternoon in exchange for a car’ then there has been a contractual consideration.
-( shown that you given something in exchange -> law does not compare values of each
thing exchanged).
4) Capacity àcapable of making a contract/ eg. below age 18, restricted ability
5) Consent à Contract can be made invalid if it can be proven that you were co-erced (lie, trick, falseness), no true consent.

If any of these are missing or corrupt, you do not have a contract.
Legal system will not support agreements which are themselves illegal.
If the subject matter in which you wish to litigate is corrupt, you will have a problem.

When is an agreement an agreement?
Jones vs Associated Tunnelling (lives and works in the North Midlands)
Joined the firm in 1964/ Chatterley Colliery (2 miles from his home)
[]
Given a Statutory statement (signed)
“Chatterley”- Jones works in Chatterley according to: Jones
:Employers
:Solicitors
-coal sheath expire, workers move on

-1969 /Henry Heath Colliery (12 miles) from his home (voluntarily relocated)
-1973 /Fresh statement of terms –but not signed
‘Work in such places in the UK, where my employers may decide from time to time’
-1976- further statement of terms/ ‘work were we tell you’ not signed
Where is Jones’ place of work of employment now?
-1980 Florence Colliery (2 miles)
Jones refused to move

Jones at an age where he could qualify for redundancy.
Redundancy ‘when there is no more work at your place of Employment’.
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Jones wanted redundancy pay, but he was sacked.
-Claimed unfair dismissal/ redundancy.
Issue: What has been agreed about his place of employment?

Verdict: Industrial tribunals- ‘no other express terms have been agreed.
Only historic document is now redundant.
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Employers tried to verify the terms by imposing terms which were never agreed to by employees of Trade Unions
Implied terms. He was willing to move locally.
‘local community terms’ – terminology not in any of the documents or language, but implied terms.
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tribunal held this was agreed.
Therefore he walked out was not made ‘redundant’
It was held that he was fairly dismissed.